Repubblika found the kind of serendipity last Monday in the constitutional court that many lawyers only dream of. They found that the modalities of the court or its process became an element of living, organic evidence within the case itself.
The probative effect in this case is the presence of the Chief Justice among the panel of three judges. In asking for his recusal or that he abstains from hearing the appeal, the lawyer Jason Azzopardi drew attention to the very issues at play.
It was an epiphanic moment that revealed more clearly the entanglements in which the Chief Justice has now also been caught up.
Indeed, that eminent legal scholar Kevin Aquilina had described it as a “constitutional mess”.
It all started with the “rushed” judicial appointments of April 25 and the simultaneous filing of the constitutional challenge to those appointments by the NGO Repubblika, which also challenges the wider system of judicial appointments.
It is a system of appointments that, in the words of the world’s most respected constitutional body – the Venice Commission – does not “ensure judicial independence”, making it at odds with the fundamental human rights to a fair hearing and effective remedy.
It’s also incompatible with the case-law of the European Court of Justice and European Court of Human Rights (ECtHR).
The government had raised 13 “preliminary exceptions” against the lawsuit. The presiding judge, Mark Chetcuti, accepted a part of one of those technical objections, and the parties then appealed from the decree.
Last Monday’s hearing was at the appeal stage, presided by the Chief Justice and two other judges.
Dr Azzopardi asked the Chief Justice if he would abstain from the case given his involvement in the judicial appointment process and the assigning of duties to the appointees.
Dr Azzopardi was referring to constitutional provisions empowering the Chief Justice to make binding “recommendations” on “subrogation” and on assigning duties to the judiciary.
These provisions also include his chairmanship of the Judicial Appointments Committee (JAC), which is part of the system of judicial appointment being challenged. The rationale is that his involvement in these processes may predispose his reasoning on the matter.
Other faulty constitutional provisions introduced in 2016 also embroil the Chief Justice in the system of judicial appointment, sanctioning and dismissal, which is opaque, defective and unworkable.
For example, the Constitution specifies that errant judiciary shall be investigated for misconduct following “a complaint in writing and containing definite charges” made by the Chief Justice (or Justice Minister).
The investigation and sanction, if any, is handled by the Committee for Judges and Magistrates, but any subsequent appeal against the committee’s findings would be heard by the Commission for the Administration of Justice, which would be chaired by the Chief Justice.
This is a piece of theatre of the absurd
In such appeal hearings, the Chief Justice assumes the chairmanship since the Constitution bars the President from the Commission when appeals are heard.
Usually the President chairs the Commission and the Chief Justice acts as deputy chairman who assumes chairmanship in the absence of the President.
This is a piece of theatre of the absurd – obligating the President’s abstention and making way for the Chief Justice, who would have formulated the written complaint in the first place, to take on the chairmanship during the appeal.
Presumably, the Chief Justice would be convinced of the complaint he would have formulated, so how could he then chair the body that hears an appeal to the same complaint?
That constitutes what human rights judges call “objective bias”, rendering the process faulty.
The ECtHR pronounced itself on such matters in the Volkov vs Ukraine case in 2013, which Volkov won.
It held that having the person who initiated or formulated the disciplinary proceedings be present during any part of the eventual adjudicating process to be incompatible with the fundamental right to fair trial.
The ECtHR found other deficiencies that have a parallel in Malta, including the presence of the AG on judicial appointment and disciplinary bodies, and that parliamentarians cannot be involved in dismissal of the judiciary as laid down in our Constitution.
This demonstrates the unworkability of the system since any disciplined or dismissed member of the judiciary can potentially take his case to the Strasbourg court and most probably win on technical grounds, irrespective of whether the sanction would have been justified or not.
The government’s direct and discretional appointment of the Chief Justice has also been highlighted by the Venice Commission as problematic from the perspective of judicial independence.
The Venice Commission had said that our system “opens the door to potential political influence” of the judiciary.
After all, if you’re trying to gain favour with the Minister for Justice or the Prime Minister in the hope of becoming Chief Justice, that’s naturally going to put you in a conflict of interest in court cases in which those two, or the party in government, have a stake.